The Supreme Court’s June 6 reversal of the order of President Maithripala Sirisena to grant a pardon to Jude Shramantha Jayamaha, who was sentenced to death over the Royal Park murder incident on July 1, 2005, was the second such action by the apex court within the last six months. 

The court on January 17 quashed the clemency given by former President Gotabaya Rajapaksa to former Parliamentarian Duminda Silva who had been on death row over the murder of former Presidential Advisor Bharatha Lakshman Premachandra on October 8, 2011. 

Both rulings by the Supreme Court to quash the capital punishment given to Duminda Silva and Jude Shramantha Jayamaha were based on technicalities - meaning the President had failed to adhere to the proper legal procedures in granting the special Presidential Pardon.

Mahanayake Theras, prior to the Vesak festival last month had made a plea to President Ranil Wickremesinghe to grant a Presidential amnesty to Ven. Galagodaaththe Gnanasara who has been sentenced to 4 years of rigorous imprisonment on March 8 this year. He had been accused of making a statement on the Kuragala Buddhist Temple during a press briefing in Colombo in 2016 which was ruled by the Colombo High Court to have caused harm to national and religious harmony. However, he was not released on the Vesak Day.

In May 2019, President Maithripala Sirisena had pardoned the Thera who was then serving a six-year prison sentence for contempt of court. A case filed by the Center for Policy Alternatives challenging the clemency order by President Sirisena is still pending. President Wickremesinghe might have taken into consideration that case when the Mahanayake Theras made a request on the Thera last month. 

A case against Army Sergeant Sunil Ratnayake who had been sentenced to death by the Colombo High Court in May 2017 before he was pardoned by President Gotabaya Rajapaksa on March 26, 2020 is also still pending. He was accused of the brutal murder of eight displaced civilians, including a five-year-old child, at Mirusuvil in Jaffna on December 19, 2000.

Most pardons granted by various Presidents in the past were not accepted by the general public, as those Presidential actions were based on political or apparent communal grounds. The pardoning of Mary Juliet Monica Fernando, the wife of a former Minister who was sentenced to death for a double murder in 2005 by former President Mahinda Rajapaksa in March 2009 was the first best example of undermining the role of the judiciary by way of Presidential clemency in the recent past. 

Why a head of the state should grant pardon to a person convicted by a court of law in the first place is the most important question one has to pose. Ahalya Lelwala, a Research Assistant attached to the Legal Research team at Verité Research in an article on their website argues that in Sri Lanka, the granting of presidential pardons has been abused, as they seem to have undermined the role of the judiciary, rather than rectify miscarriages of justice. “This is evidenced by the fact that several sentences in the above cases were affirmed by the Supreme Court, which is the ‘highest and final superior court of record in the Republic.”

It could be acceptable if the convict is languishing in prison for not being able to afford an appeal against the verdict of a lower court, or if there is a general perception that there has been a miscarriage of justice, as a result of political or personal vendetta by the executive. There were no protests when the former Army Commander Sarath Fonseka and former Chief Justice Dr. Shirani Bandaranayake who had been cashiered and impeached respectively were exonerated by President Sirisena, since the miscarriage of justice was clear and the whole country knew that they were victims of Presidential highhandedness.

Many leaders of Sri Lanka are so morally corrupt that they have used not only executive powers to pardon wrongdoers but also attempted to impose a blanket invalidation of court actions against their cronies. The Commission appointed by former President Gotabaya Rajapaksa not only for the purpose, but also to take action against those who filed cases in courts was the best case in point.